CASSIBRY, District Judge.
Mary Ellen Pemberton is appealing from two judgments of the district court denying her relief for the death of her husband: (1) Judgment dismissing her complaint against Pan American World Airways, Inc., notwithstanding the jury verdict in her favor and against it for $65,000,
Appellant's husband, William George Pemberton, was employed by Martin Marietta Company (Martin) at Cape Kennedy Space Center when a forklift which he was operating in the course of his duties overturned and fell on him on October 27, 1964, causing injuries which resulted in his death. Martin had a contract with the United States under which it was to conduct certain checkout functions on the Gemini System at Launch Complex 19 at Cape Kennedy. The United States supplied the forklift in 1962, among other equipment, for the use of Martin in carrying out the contract. Pan American World Airways, Inc. (Pan American) provided the maintenance for the Government-owned equipment supplied to Martin.
The basis of appellant's claim against Pan American is that it was negligent in the maintenance of the forklift and that negligence was the proximate cause of the accident resulting in the fatal injuries. The basis of the claim against the United States is that it was negligent in permitting a forklift, demonstrated to be defective, to continue to be used by the employees of Martin. Both claims were tried at the same time, the one against Pan American to the jury and the one against the United States to the district judge.
I. CLAIM AGAINST PAN AMERICAN
Under the test laid down in Boeing Company v. Shipman, 411 F.2d 365
In response to special interrogatories the jury found that Pan American breached its contract to maintain equipment by providing, or failing to provide, maintenance and repair services for the forklift, was negligent in its maintenance and repair services provided by it for the forklift and this negligence was a legal cause of the accident in this case.
A maintenance jacket which contained a record of all service performed by Pan American on the forklift was kept with the vehicle, but it disappeared after the accident and was not produced at the trial. There was direct evidence
The established procedure
The trial judge correctly concluded, we think, that Pan American had an obligation to repair and service the forklift only upon Martin requesting repair and service. His evaluation of the evidence as proof that the obligation arose in this case we seriously question. According to him, "There was no evidence that Pan American performed any work on the forklift subsequent to August 24, 1964. There was evidence that in the usual course of business Martin did notify Pan American that the forklift had been "red tagged" and that servicing and repair by Pan American would follow such notification. However, to hold Pan American liable on the basis of what Martin employees may have done in the usual course of business would be too speculative to affix liability. * * *"
The court failed to appreciate the quality of the evidence for proof that the established procedure was adhered to in this case. When a custom or usual course of business is established and it is proven that certain acts in that custom were performed, the likelihood that all of the usual course or custom was adhered to is increased.
Pan American makes the argument that the evidence is insufficient
II. CLAIM AGAINST THE UNITED STATES
The district judge dismissed the appellant's claim against the United States because he found that the appellant had failed to prove any negligence of any employee or agent of the Government which was a proximate cause of the accident. Appellant contends that by this holding the court ignored or overlooked three separate theories under which the United States could be held liable in this case.
Appellant contends first that, under Cate v. United States, 249 F.Supp. 414 (S.D.Ala.1966), the United States can be liable as an entity even if no negligence of a specific agent or employee can be proved. She argues that the United States had the duty to maintain its equipment in proper condition, that the Government made periodic inspections of the maintenance jacket for the forklift and that it should have had notice of this vehicle's history of defective brakes and steering mechanism and therefore it was negligent as an entity in not maintaining the forklift in proper working condition. The weakness of this argument is that it was not proved that a periodic inspection of the maintenance jacket would have revealed that this vehicle could not be maintained in good condition through the established procedure for repair and service between Martin and Pan American.
Appellant contends second that, under Emelwon, Inc. v. United States, 391 F.2d 9 (5th Cir.1958), the United States is liable under the Federal Tort Claims Act in the same manner as a private individual would be at the place where the act or omission occurred for the acts of his employees or independent contractors, and that under Florida law a private individual is liable for the consequences of a dangerous situation that he knew about in the work of an independent contractor. Admitting the validity of the theory for the purposes of appellant's argument, the court does not find evidence that the Government knew or should have known that defects existed in this vehicle which could not be remedied by the repair facilities of Pan American.
Appellant's third theory likewise lacks evidentiary support. She argues that, under the doctrine stated in Holstun & Son v. Embry, 124 Fla. 554, 169 So. 400 (1936), the owner of a dangerous instrumentality such as a motor vehicle who intrusts it to another is bound to exercise reasonable care to provide a safe instrumentality, and the forklift in this case was not maintained in a safe condition so that the United States should be liable. By arranging for Pan American to repair and service the equipment, the United States was exercising reasonable care to provide equipment in good condition. The evidence does not show that the Government had notice that this arrangement was not working to accomplish its purpose in the case of the forklift. Appellant has
Affirmed in part, reversed in part and remanded for further action consistent with this opinion.
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